Litigation Brief | Settlement agreements, privilege and the impact of Covid-19

Written on 29 May 2020

In the latest edition of Osborne Clarke's Litigation Brief, we look at the impact that coronavirus is having on hearings and tribunals, report on the latest cases on privilege and disclosure, and ask: do you know what you are giving up when you enter into a settlement agreement?

This edition sets out the impact of the Covid-19 pandemic on procedural issues when litigating in England and contains tips for parties participating in online hearings and trials.

We also look at recent case law on settlement agreements, when a company might have to disclose documents belonging to a separate company, and how to try to protect documents from being shown to the other side during litigation.

If you would like to discuss any of the issues raised in this edition of Litigation Brief, please contact one of us. Our contact details are set out below.

Hearings and trials: the impact of the Covid-19 crisis

The UK government’s emergency legislation to deal with the Covid-19 pandemic included provisions to rapidly expand the use of remote hearings in a bid to reduce the risk of spreading infection. Early evidence suggests that the new system is, on the whole, working well.

The courts will try to avoid adjourning hearings and trials and will attempt to carry on with "business as usual". The Osborne Clarke disputes team have recently taken part in remote hearings and provide some tips on what to look out for and consider ahead of and during the hearing.

One issue that may arise during the pandemic is service of claim forms and other court documents by post or courier services where offices are closed. The Civil Procedure Rules allow for service by email only where the recipient has agreed to accept service in this way. But should you agree?

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Drafting settlement agreements: what are you giving up?

A significant concern when parties enter into a settlement agreement is that they are giving up rights that they do not yet know that they have. For example, what if you do not know about a claim when you reach your settlement but the other side does? In addition, can your agreement amount to an abuse of process in certain circumstances? Those issues came up in two recent cases.

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Disclosure and privilege: does it help to copy outside counsel into communications?

Litigating parties will often be keen to limit the extent of disclosure that they will need to provide during the case. This has proved a fertile ground for disputes in recent years and that trend has continued over the last few months with a spate of case law addressing issues such as when a parent company needs to disclose documents held by its subsidiaries, and whether copying a lawyer into an email helps to protect that email as privileged.

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